Official Opinion 2000-5

May 18, 2000

To:

State School Superintendent and Chairman, State School Board

Re:

The Georgia Constitution prohibits grants to sectarian institutions for the purpose of the Reading Challenge Program.

Both of you have asked for advice concerning the constitutionality of Reading Challenge grants to sectarian schools from the Georgia Department of Education. The dispositive issue is whether such a grant would violate that provision of the Georgia Constitution that prohibits money being taken from the public treasury, directly or indirectly, in aid of religion. See Ga. Const. Art. I, Sec. II, Para. VII.

The Reading Challenge Program is apparently a noncompulsory after-school program for middle school students in which grants are provided directly to educational institutions in return for the delivery of after-school care, opportunities to improve student reading skills, and enhancement of student interest in reading. Some of the educational institutions appear to be churches or other sectarian institutions.

In my opinion the Georgia Constitution prohibits such grants from state funds being provided directly to the sectarian institutions participating in this program. Article I, Section II, Paragraph VII provides that “[n]o money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, cult, or religious denomination or of any sectarian institution.”

In 1988 Op. Att’y Gen. U88-6, an almost identical question was asked about a county school system providing after-school care by contracting with a sectarian organization. It was assumed that the after-school program would be operated in a strictly non-sectarian manner, otherwise it would violate the First Amendment to the United States Constitution. Even so, the opinion concluded that if the contractual arrangement involved “any payment of public funds by the school system to the sectarian organization, the constitutional prohibition against taking money from the public treasury in aid of a religious organization would appear to be implicated.” (Emphasis in original) Id. at p. 97. The opinion went on to state that if the contractual arrangement was one in which parents paid fees to the sectarian organization for the after-school care, and no public funds were involved, the constitutional prohibition would not be implicated. Id.; Accord 1969 Ops. Att’y Gen. 69-136 (Unofficial) and 69-125 (Unofficial). The Georgia Supreme Court has stated rather strongly that the State Constitution:

declare[s] against giving aid to sectarian schools and institutions. When the State selects a sectarian institution of learning, and commits to such institution its wards, for whose maintenance and education it pays, it gives the most substantial aid to such an institution. On the same principle the State could undertake to educate all its children in such sectarian institution, and pay them for the education of its children in such institutions of learning. Any such course would be giving the most valuable aid to such sectarian schools and institutions.

Bennett v. City of LaGrange, 153 Ga. 428, 437 (1922).

Several other states have similar prohibitions in their constitutions. See, e.g., South Dakota Const., Art. VIII, Sec. XVI; California Const. Art. XVI, Sec. V; Kentucky Const. Sec. 189; Idaho Const. Art. IX, Sec. V. Almost without exception those provisions have been construed strictly to prevent any kind of support to religious organizations. That includes even indirect arrangements in which it was argued that the state was only providing support to students rather than to the sectarian schools that they attended. See Smith v. Donahue, 195 N.Y.S. 715 (1922) (free textbooks to students in parochial schools was aid to religion and violated the state constitution); Dickman v. School District No. 62C, 366 P.2d 533 (Or. 1961) cert. den. 371 U.S. 823 (1962) (free textbooks prohibited); Elbe v. Yankton Ind. School Dist., 640 F. Supp. 1234 (D.S.D. 1986) (public school loaning textbook to parochial school violated state aid provision); Johnson v. Sanders, 319 F. Supp. 421(D.C. Conn.). aff’d. 403 U.S.955 (1971) (state board of education contract with operators of sectarian schools for “secular education services” is unconstitutional). But see Chance v. Mississippi State Textbook Rating & Purchasing Bd., 190 Miss. 453 (1941) (free book loaning program was not a “use or diversion” of school or other educational funds prohibited by the state constitution).

An annotation in the American Law Reports Second reports that “Arrangements whereby tuition for a pupil entitled to a public school education is paid to a sectarian school in lieu of providing the public school itself have been consistently held invalid under one or more state or federal constitutional provisions respecting separation of church and state, or the use of public funds or “common school” funds for sectarian purposes.” Annotation, Public Payment of Tuition, Scholarship, or the Like, as Respects Sectarian School, 81 A.L.R.2d 1309 (1997).

Based upon my review of the law in Georgia and in other states with a similar constitutional prohibition, it appears to be an inescapable conclusion that the State may not provide a grant or enter into a contract for after-school care with a sectarian organization. That does not mean that every organization that may have some affiliation with a religious group is included in the definition of “sectarian.” The test for whether the organization is sectarian appears to be whether the organization itself is one for “religious purposes for the public worship of God.” See Bennett v. City of LaGrange, 153 Ga. at 433. There could be organizations that are supported in part by a church or other religious organization that are not organized or operated for religious purposes.

In light of the conclusion reached herein, it is unnecessary to consider whether the program violates the First Amendment to the United States Constitution.

In conclusion, it is my official opinion that the Georgia Constitution prohibits grants to sectarian institutions for the purpose of the Reading Challenge Program.